The term natural born Citizen" appears once in the U.S. Constitution and that in regard to presidential eligibility. There has been a good deal written on the topic lately since many presidential hopefuls are from families who recently entered the U.S. The question therefore arises as to whether the concept of Citizen as currently defined can be a substitute for natural born Citizen? My contention is it cannot and is thus the topic I will explore.
In order to support this contention there must be several points of agreement. First to be adherent to the U.S. Constitution one must as best as possible see it through the eyes of those living in 1787 America. Second it requires that any subsequent law act code etc. not be in conflict with the Constitution. Third laws acts codes etc. in conflict with the Constitution are considered unconstitutional with the proper remedy being the amendment process. Finally the language of federal acts subsequent to the Constitution which address the citizen were taken from a male dominant perspective given the limited legal rights of women at the time.
The requirements for presidential eligibility as noted in the U.S. Constitution Article II Section I paragraph 5 states in part: No person except a natural born Citizen or a Citizen of the United States at the time of the Adoption of this Constitution shall be eligible to the office of President." Prior to the end of the Revolutionary War there were of course no U.S. citizens the majority of whites being British subjects. In 1787 what was needed for constitutional construction was to determine who was a citizen. With the defeat of the British and in consideration of the populace who did not flee the 13 colonies a citizen from the American perspective would have been those born in the 13 colonies or those born abroad and now subject to the jurisdiction of the 13 colonies.
The founders though rejoicing in revolutionary victory were still concerned with potential foreign intrigue. With that in mind mere birth or jurisdiction in what was to be the United States was felt to be a rather low bar for the power to be vested in a president. Eligibility in the Constitution would therefore be transitioned from a relatively lesser requirement of Citizen to a more rigid one of natural born Citizen.
Article 1 Section 8 of the U.S. Constitution vests authority in the Congress To establish an uniform Rule of Naturalization." Several years later the Naturalization Acts of 1790 and 1795 offered clarity as to who were considered natural born Citizens or citizens a difference of limited but potentially vital importance.
With the passage of time those involved in the debates and signing of the Constitution drifted away either by political defeat illness or death. The country was thus left with fewer witnesses debaters and signers to assist in maintaining the intent behind the written Constitution. On 3/26/1790 the passage by the United States Congress of An act to establish an uniform Rule of Naturalization" occurred. That act contained the following: And the children of citizens of the United States that may be born beyond sea or out of the limits of the United States shall be considered as natural born Citizens." Several points worth noting are: first a definition of natural born Citizens" is given that being birth to existing citizens. Second the pleural citizens" is used and given the times would either indicate both the father and mother or the father alone but certainly not the mother alone. Third children born out of the United States to citizens would still be considered citizens. Finally the term natural born Citizens retained the grammatical form used within the Constitution.
On 1/29/1795 Congress enacted An act to establish an uniform rule of Naturalization; and to repeal the act heretofore passed on that subject." The act added criteria broadening the naturalization requirements such as: He shall have declared…to renounce forever all allegiance and fidelity to any foreign prince…state…whereof…may…be a citizen or subject." Thus dual citizenship was considered to contradict the unwavering loyalty sought of those aspiring to become American citizens.
In addition there appeared in the 1795 Act a change in wording for the children of citizens born out the limits of the United States from being considered …natural born Citizens…" to …citizens of the United States…" This alteration would result in a clouding of the intended meaning of the natural born Citizen requirement of the president.
The question of defining the citizen was revisited with the manumission of the slaves and ending of the Civil War. With ratification of the 14th Amendment in 1868 the law of the land was now All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States… Following constitutional principles via the amendment process Congress defined the citizen but not the natural born Citizen the expected result of legislation crafted in part to address the status of those formerly enslaved.
The phrase subject to the jurisdiction thereof would in time become problematic. In 1787 during the Constitutions ratification there was no concept of a dual citizen in a world ruled almost without exception by monarchs. Disregard for the American citizen was encountered during the British impressment of American merchant sailors one of several issues leading to the war of 1812.
Being subject to the jurisdiction thereof" would be practicable if citizen status was recognized by only one country but that could not be the case if a child born in America of British parents was considered under the jurisdiction of both Britain and the United States. William O. Douglas Supreme Court justice stated the implications as such: One who has a dual nationality will be subject to claims from both nations claims which at times may be competing or conflicting." Kawakita v United States 343U.S. 717 (1952)
Following the Spanish American War and the acquisition of former Spanish colonies by the U.S. the 20th century was to see further changes in defining the citizen though not from the expected quarter. Considered the Non-delegation Doctrine Article I section I of the Constitution states All legislative Powers herein granted shall be vested in a Congress of the United States…" In 1928 the Supreme Court ruled that an implied power of Congress existed to delegate legislative authority if an intelligible principle" was given to guide the Executive branch. During the FDR administration the Code of Federal Regulation (United States Code) became the codification of the rules and regulations proposed and established by the Executive branch or its agencies. Though Congress may include enabling legislation to implement its Acts it is in the details and enforcement that Congress has little if any say since those will fall directly or indirectly under the Executive branch.
At present 8 USC chapter 12 subchapter III 1401 sets forth regulations regarding Nationality at Birth and Collective Naturalization." The code defines a citizen as A person born in the United States and subject to the jurisdiction thereof" along with A person born outside the United States and …possessions…of parents both of whom are citizens of the United States…prior to the birth of such person." Other situations allowing for a person to be recognized as a citizen at birth relate to aboriginal tribes nationals unknown parentage or birth outside the country to parents in the armed forces or government employ. Retained in this 1952 regulation are subject to the jurisdiction thereof and birth outside the U.S. to citizen parents. Despite subsequent Amendments the United States Code does not define a natural born Citizen which is the only extant constitutional citizen criteria for determining presidential eligibility.
In summary the only law defining natural born Citizen was the 1790 Naturalization Act which stated that those born outside the limits of the United States to citizen parents are considered as natural born Citizens. Thus by implication those born within the United States to citizen parents are likewise natural born Citizens. The constitutional requirements for the president require that one be either a natural born Citizen or a Citizen at the time of the Constitutions enactment. The Citizens were those who were born in what was to become the United States or those who chose to remain after the British defeat. For those born after the Constitutions enactment only those who are natural born Citizens are eligible to be president.
So where does this leave us? Three years after the signing of the U.S. Constitution the 1790 Naturalization Act gave to posterity the meaning of the term natural born Citizen. Evidence of this is demonstrated in the grammatical choice made to follow the constitutional phrase natural born Citizen thus conveying what was considered common knowledge: a natural born Citizen is one born of citizen parents.
In recent times America has had several presidential candidates whose eligibility for the office has been questioned. Personal circumstances have involved birth outside the United States a citizens mother possibly under the age to confer citizenship a citizens mother who may not have met American residency requirements to confer citizenship a non-American citizen father and finally non-citizen parents at the time of the childs birth.
These variations in parental citizen status from which arises the question of the offsprings presidential eligibility occur in large part due to the Judiciary branchs deliverance of legislative power to the Executive as previously noted along with a misreading of and inapplicability of the United States Code. Essentially the Executive was given the authority to define its own eligibility.
Call it the king of all conflicts of interest compounded by a Congress not at the forefront of protecting its own constitutional prerogatives. Its time to get back to the intended meaning of the natural born Citizen clause in the Constitution: citizen parents at the time of the childs birth. All children have two parents and with the constant chaos in the world we deserve a president that no other country can claim as its citizen.
Steve Karp MD
Though graduating with a BA in history in 1987 I decided along the way to go to medical school and currently practice Radiation Oncology in Pennsylvania.
